# C_2021310EN.01000201.xml

| 2.8.2021 | EN | Official Journal of the European Union | C 310/2 |
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2.8.2021

EN

Official Journal of the European Union

C 310/2

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Judgment of the Court (Fifth Chamber) of 17 June 2021 (request for a preliminary ruling from the Ondernemingsrechtbank Antwerpen — Belgium) — Mircom International Content Management & Consulting (M.I.C.M.) Limited v Telenet BVBA

(Case C-597/19) (1)

(Reference for a preliminary ruling - Intellectual property - Copyright and related rights - Directive 2001/29/EC - Article 3(1) and (2) - Concept of ‘making available to the public’ - Downloading of a file containing a protected work via a peer-to-peer network and the simultaneous provision for uploading pieces of that file - Directive 2004/48/EC - Article 3(2) - Misuse of measures, procedures and remedies - Article 4 - Persons entitled to apply for the application of measures, procedures and remedies - Article 8 - Right of information - Article 13 - Concept of ‘prejudice’ - Regulation (EU) 2016/679 - Point (f) of the first subparagraph of Article 6(1) - Protection of natural persons with regard to the processing of personal data - Lawfulness of processing - Directive 2002/58/EC - Article 15(1) - Legislative measures to restrict the scope of the rights and obligations - Fundamental rights - Articles 7 and 8, Article 17(2) and the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union)

(2021/C 310/02)

Language of the case: Dutch

Referring court

Ondernemingsrechtbank Antwerpen

Parties to the main proceedings

Applicant: Mircom International Content Management & Consulting (M.I.C.M.) Limited

Defendant: Telenet BVBA

Intervening parties: Proximus NV, Scarlet Belgium NV

Operative part of the judgment

| 1. | Article 3(1) and (2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the uploading, from the terminal equipment of a user of a peer-to-peer network to such equipment of other users of that network, of pieces, previously downloaded by that user, of a media file containing a protected work, even though those pieces are usable in themselves only as from a certain download rate, constitutes making available to the public within the meaning of that provision. It is irrelevant that, due to the configurations of the BitTorrent client sharing software, that uploading is automatically generated by it, when the user, from whose terminal equipment that uploading takes place, has subscribed to that software by giving his or her consent to its application after having been duly informed of its characteristics; |
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1.

Article 3(1) and (2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the uploading, from the terminal equipment of a user of a peer-to-peer network to such equipment of other users of that network, of pieces, previously downloaded by that user, of a media file containing a protected work, even though those pieces are usable in themselves only as from a certain download rate, constitutes making available to the public within the meaning of that provision. It is irrelevant that, due to the configurations of the BitTorrent client sharing software, that uploading is automatically generated by it, when the user, from whose terminal equipment that uploading takes place, has subscribed to that software by giving his or her consent to its application after having been duly informed of its characteristics;

| 2. | Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as meaning that a person who is the contractual holder of certain intellectual property rights, who does not however use them himself or herself, but merely claims damages for alleged infringers, may benefit, in principle, from the measures, procedures and remedies provided for in Chapter II of that directive, unless it is established, in accordance with the general obligation laid down in Article 3(2) of that directive and on the basis of an overall and detailed assessment, that his or her request is abusive. In particular, as regards a request for information based on Article 8 of that directive, it must also be rejected if it is unjustified or disproportionate, which is for the referring court to determine; |
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2.

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as meaning that a person who is the contractual holder of certain intellectual property rights, who does not however use them himself or herself, but merely claims damages for alleged infringers, may benefit, in principle, from the measures, procedures and remedies provided for in Chapter II of that directive, unless it is established, in accordance with the general obligation laid down in Article 3(2) of that directive and on the basis of an overall and detailed assessment, that his or her request is abusive. In particular, as regards a request for information based on Article 8 of that directive, it must also be rejected if it is unjustified or disproportionate, which is for the referring court to determine;

| 3. | Point (f) of subparagraph 1 of Article 6(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), read in conjunction with Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that it precludes in principle, neither the systematic recording, by the holder of intellectual property rights as well as by a third party on his or her behalf, of IP addresses of users of peer-to-peer networks whose internet connections have allegedly been used in infringing activities, nor the communication of the names and of the postal addresses of those users to that rightholder or to a third party in order to enable it to bring a claim for damages before a civil court for prejudice allegedly caused by those users, provided, however, that the initiatives and requests to that effect of that rightholder or of such a third party are justified, proportionate and not abusive and have their legal basis in a national legislative measure, within the meaning of Article 15(1) of Directive 2002/58, which limits the scope of the rules laid down in Articles 5 and 6 of that directive, as amended. |
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3.

Point (f) of subparagraph 1 of Article 6(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), read in conjunction with Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that it precludes in principle, neither the systematic recording, by the holder of intellectual property rights as well as by a third party on his or her behalf, of IP addresses of users of peer-to-peer networks whose internet connections have allegedly been used in infringing activities, nor the communication of the names and of the postal addresses of those users to that rightholder or to a third party in order to enable it to bring a claim for damages before a civil court for prejudice allegedly caused by those users, provided, however, that the initiatives and requests to that effect of that rightholder or of such a third party are justified, proportionate and not abusive and have their legal basis in a national legislative measure, within the meaning of Article 15(1) of Directive 2002/58, which limits the scope of the rules laid down in Articles 5 and 6 of that directive, as amended.

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(1)  OJ C 383, 11.11.2019.

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